Activist legislators.

The law, lawyers, and the court.
March 21 2005 3:20 PM

Activist Legislators

The boundless overreaching behind Congress' new Schiavo bill.

Whether Terri Schiavo will live or die in the coming days has come down to this: Can federal district judge James Whittemore set aside virtually every bedrock constitutional principle on which this nation was founded, just so members of the United States Congress may constitutionalize the nowhere-to-be-found legal principle that a "culture of life" is a good thing?

This morning's decision by Congress and President Bush—to authorize new federal legislation that will obliterate years of state court litigation, and justify re-inserting a feeding tube into Terri Schiavo, based on new and illusory federal constitutional claims—is not about law. It is congressional activism, plain and simple; legislative overreaching and hubris taken to absurd extremes.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Let's be clear: The piece of legislation passed late last night, the so-called "Palm Sunday Compromise," has nothing whatever to do with the rule of law. The rule of law in this country holds that this is a federalist system—in which private domestic matters are litigated in state, not federal courts. The rule of law has long provided that such domestic decisions are generally made by competent spouses, as opposed to parents, elected officials, popular referendum, or the demands of Randall Terry. The rule of law also requires a fundamental separation of powers—in which legislatures do not override final, binding court decisions solely because the outcome is not the one they like. The rule of law requires comity between state and federal courts—wherein each respects and upholds the jurisdiction and authority of the other. The rule of law requires that we look skeptically at legislation aimed at mucking around with just one life to the exclusion of any and all similarly situated individuals.

And what is the overwhelming constitutional value that supersedes each of these centuries-old legal notions? Evidently, Congress has a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the "culture of life" is in peril. Republicans acknowledged this weekend that their views on "the sanctity of life" trump even their convictions about federalism. Or, as Tom DeLay put it, when asked how he reconciles this bill with conservative calls to keep the federal government out of state matters, "We, as Congress, have every right to make sure that the constitutional rights of Terri Schiavo are protected, and that's what we're doing."

This congressional authority to simply override years of state court fact-finding brings with it other superpowers, including the power of gratuitous name-calling: Members of Congress unable to pronounce Schiavo's name just last week are denouncing her husband as an adulterer and common law bigamist who withheld proper medical care from her. I wonder what they'd say about my parenting—or yours—if they decided to make a federal case out of every domestic-custody dispute currently resolved in state court proceedings.

Members of Congress have apparently also had super-analytical powers conferred upon them, as well. Senate Majority Leader, and heart surgeon, Bill Frist felt confident last week—after reviewing an hour of videotape—in offering a medical diagnosis of Schiavo's condition, blithely second-guessing the court-appointed neurologists who evaluated her for days and weeks. His colleagues are similarly self-appointed neurological experts. Years of painstaking litigation, assessment, and evaluation by state courts are dismissed by Tom DeLay as the activist doings of a "little judge sitting in a state district court in Florida." Only the most extraordinary levels of congressional hubris could allow a group of elected citizens to substitute their personal medical, legal, and ethical judgments for those of the doctors, judges, and guardians who have been intimately involved with this heartbreakingly sad case for years.

And shouldn't we worry—just a bit—when in the name of a "culture of life" Congress enacts legislation that singles out just one Florida family for special legal standing? Frist calls this "a unique bill" that "should not serve as a precedent for future legislation." Yet Schiavo is just one of up to 35,000 people in this country in a persistent vegetative state as the result of trauma, drug overdose, or other medical complications. Remember what happened to Élián Gonzáles when the federal government decided to embroil itself—just this once—in a custody dispute? Why does Terri Schiavo alone warrant the legislative intercession of these self-appointed crusaders? (Not because this is a "great political issue" that would appeal to the base and defeat a Florida Democrat, according to a one-page memo distributed to Republican senators last week.) The last time Florida had to contend with a good-for-one-ride-only legal intervention of this sort was in Bush v. Gore.

Take a peek into any chat room (or this Fray in 15 minutes) and you will find hundreds of individuals who personally know that Terri Schiavo is—despite voluminous testimony by her doctors and her guardians ad litem and the findings of multiple judges—capable of laughter and responsiveness and a full recovery. How do they know these things? The same way their elected representatives do: They watched a video clip. And because anyone who disagrees with the video is a murderer and torturer, the state court judge in this case requires constant police protection: The standard-bearers of the "culture of life" keep threatening to kill him.

The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.

This is not a slippery-slope case, where it's a short hop from "executing" those in persistent vegetative conditions to killing anyone with a disability. This is a case in which an established right-to-refuse-treatment claim, litigated for years up and down through the appeals courts, is being thwarted by parents with no custodial claim to their child. By stepping in merely to sow doubt as to whom Terri Schiavo's proper custodian might be, rather than creating some new constitutional right to a "culture of life," Congress has simply called the existing legal regime into doubt without establishing a new one. This new law offers no clarity about what the new federal claims might be. It just forum-shops for a more tractable judge.

You can put aside the doctrine of federalism for Terri Schiavo, and the principles of separation of powers, and comity, and of deference to finality and the rule of law. But you'd want to be certain, on the day you do so, that you're sacrificing them for some concrete legal value that matters a whole lot more. Subordinating a centuries-old culture of law to an amorphous, legally meaningless "culture of life" is not a decision to be taken over a weekend.

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